TREVER FERNANDEZ Vs. STATE OF KERALA

JUDGEMENT

(1.) TWIN brothers who were accused of murdering a 17 year old daughter of their step brother faced trial for the offences punishable under S.427, S.436, S.307 and S.302 read with 34 of the Indian Penal Code in SC No. 2279/2004 on the file of the Court of Sessions, Thiruvananthapuram. Both of them were found guilty under S.427, S.436 and S.302 read with S.34 of the IPC. The 1st accused was given capital punishment for offences punishable under S.302 of IPC whereas 2nd accused was given the punishment of life imprisonment. They were also sentenced to undergo Rigorous Imprisonment for 10 years under S.436 read with S.34 of the IPC with a fine of Rs.5,000/- each. Both were also sentenced to undergo R. I. for 2 years under S.427 read with S.34 of IPC. Both were acquitted for the offences under S.307 read with S.34 of the IPC. The death sentence was awarded subject to the confirmation by this Court as provided under S.366(2) of the Code of Criminal Procedure and the death sentence referred is numbered as D. S. R. No. 1/2006. It was heard along with Crl. Appeal. Nos. 96/2006 filed by the 1st accused and 97/2006 filed by the 2nd accused.

(2.) ACCORDING to the prosecution, deceased Sandra, her younger brother Christopher Gary Fernandez (PW 2) and the accused were staying together in the residential building known as 'House of Bethlehem' at the place called Punnavoor in Maranalloor Village near Kattakada in Thiruvananthapuram District. Accused were the step fathers of deceased Sandra. PW 5 father of deceased Sandra was born to the first wife of his father whereas accused were born to the second wife of his father. The name of the mother of the accused is Lilly. PW 5 father of deceased Sandra is employed in Kuwait as a Senior Officer in Customs Department. He used to come home occasionally. Mother of Sandra, Christina left the company of PW 5 when Sandra was three years old. As per the evidence of PW 2 brother of Sandra as well as PW 5, her whereabouts are thereafter not known. At the time when Christina joined PW 5 she had another daughter in the first marriage called Georgina (PW 18). In PW 5's evidence it was also stated that after the departure of Christina, another woman Sobha has been with him and they were living as husband and wife for two years. PW 5 further stated that after the relationship of PW 24, Sobha, to look after the children, he married Leona through a registered marriage. Leona was not examined. It has come out further in evidence that Leona was also stayed with deceased, PW 2 and accused in that house for one month. To look after the children step mother of PW 5 Lilly was also called to the house. But there was some disputes between Lilly and deceased and Lilly left the place one week prior to the incident. So at the time of incident PW 3 a maid servant was staying in the house to look after the children, for preparing the food etc. It has also come out in evidence that the residential house had a big compound wall and six ferocious dogs were also kept in the house and those dogs were looked after by A1. Extent of the property is only 9 cents. A1 and A2 had no job or any other income. PW 5 was looking after the accused, deceased etc. It is also stated that before one month of the incident A1 get a job as a waiter. On the fateful day, 03/08/2004 it was a harthal day and therefore PW 2 did not go to the School. Due to some problems the deceased stopped going to the School and she was living in the house itself. Because of the harthal A1 also did not go to the work and all of them were in the house on that day. In the evening A1 went out and returned with bread and milk for the supper. By about 8 p.m. supper was ready. Accused and Christopher went for supper. Sandra did not join them and thereafter it appears that there was some quarrel picked up with the accused and the deceased and accused were telling that she was responsible for sending Lilly their mother out of the house by her father Joseph (PW 5). First accused went to the kitchen and took a long knife and caught hold of Sandra by her neck and held the knife on her abdomen. When Christopher tried to prevent from doing harm to Sandra 2nd accused caught hold of Christopher. After releasing Sandra and Christopher both accused destroyed all the household items like T. V., Speaker, Phone etc. available in the dining hall. Simultaneously 2nd accused asked the 1st accused to let loose all the six dogs. 1st accused went to the courtyard and did so. When one dog by name 'Rockey' came running Sandra, Christopher and maid servant Lalitha ran to the kitchen and went inside a bathroom adjacent to the kitchen and bolted the door from inside. Immediately both accused came and kicked at the door of the bathroom. While Sandra was opening the door, accused beat Sandra and kicked on her abdomen and dragged her from the bathroom by catching hold of her lock of hair. Sandra and Christopher cried aloud for help. In the meanwhile both accused went into the kitchen and lighted the gas stove. They brought bedsheets and pillows to the kitchen and after lighting it on the gas stove, put it in all the rooms of the house. The household articles in the rooms including plastic chairs and carpet caught fire. Christopher then went inside the kitchen and put off the gas stove. As fire and smoke filled the house, Sandra, Christopher and the maid servant opened the outer door of the kitchen to come out of the house. But they found the dogs out and Sandra and Christopher tried to hide near the well in the courtyard. Maid servant Lalitha entered into an old kitchen room outside the main building and tried to hide there. When the house caught fire electric supply went off. As Sandra and Christopher took shelter on the outer protective wall of the well close to the compound wall, the accused saw them and immediately 2nd accused came over there and kicked Sandra. In the mean while 1st accused took out an axe from nearby and struck Sandra on her abdomen with its blund portion. Sandra screamed aloud and sat on the protective wall of the well. Christopher was able to wrest the axe and threw it in the well. Christopher also helped his sister Sandra to sit on the wall of the well. But 1st accused came there and hit Sandra's head against the compound wall. At that time 2nd accused pushed her in the gap between the well and compound wall. 1st accused went to the old kitchen room and came with a sharp edged chopper which is identified as MO 1 and then he indiscriminately struck Sandra on the back of her head with the sharp edged portion of MO 1 chopper. Sandra screamed aloud for a while and then became silent and both of them together pushed her into the well. When the accused went away from there Christopher climbed on the protective wall of the well and cried aloud for help calling his neighbours. PW 1 Ratheesh and another Ratheesh (PW 11) came outside the compound wall and asked Christopher to jump over the compound wall. Christopher thus jumped the compound wall and came out. He was taken to the nearby house of PW 1, who then proceeded to Malayinkeezhu Police Station and gave the First Information Statement (Ext. P1) on the basis of which crime was registered by the police. F. I. Statement was given at 10.30 p.m. on the same day. Police and Fire force came there during the night itself. Sub Inspector of Police (PW 32) and others tried to put out the fire. The dead body was inside the well, which is having a depth of about 40 feet. They were not able to retrieve the dead body of Sandra. Both the accused were taken to the Police Station by the S. I. of Police. Then investigation was thereafter done by the Circle Inspector of Police, Kattakada. On the next day police came to the house of Bethlehem and retrieved the dead body with the help of PW 19. After preparing the inquest report the dead body was sent for post mortem examination.

(3.) SINCE the death reference is a referred trial, we will consider the evidence adduced by all the main witnesses in this case. Before going into the evidence of the occurrence witnesses we will first deal with the medical evidence. PW 26 is the Doctor who conducted post mortem examination of deceased Sandra. He issued Ext. P20 Post mortem certificate. It was stated in the post mortem certificate that the deceased was a moderately nourished young female of height 155 cm. and weight 48 kg. medium complexion. It was also noted by the Doctor as follows: